DAMA SESHADRI NAIDU, J.

Issue:

1. The Service jurisprudence, including the judicial precedents, recognizes the doctrine of abandonment: an employee voluntarily giving up his service, say, by continued absence from duty. Here an employee was found to have been continuously absent without leave-on medical grounds though. The employer disengaged him. Has the employer been justified in disengaging the employee on the grounds of abandonment of service despite the employee's defence of illness?

Introduction:

2. Here the petitioners are the employers; the respondent is an employee. When the employee absented himself for long spells from duty, albeit, under the cover of illness; the employer dispensed with his services: It disengaged the employee. Assailing the employer's action, the employee filed O.A. No. 642 of 2008 before the Central Administrative Tribunal, Ernakulam Branch. Through Order, dt.27.08.2009, (Ext.P1) the learned Tribunal directed the employer to reinstate the employee. Amelioratively, the Tribunal permitted the employer to subject the employee to suitable medical tests to ascertain the employee's fitness to resume duty. Aggrieved by the direction of reengagement, the employer has filed this writ petition.

Facts:

3. The facts in brief are that the employee was appointed a casual labourer on 21.11.1983 in the employer's Southern Naval Command, Kochi. In the gradation list prepared in course of time by the employer, the employee's name was shown at S. No. 74.

4. To put the issue in perspective, we may have to refer to certain chronology of events to examine whether the petitioners are justified in deleting the respondent's name from the array of casual labourers; that is, from the gradation list. The employee joined the service as a casual labourer in 1983. From 28.3.2005, the employee absented himself; it prompted the employee to send a notice on 5.4.2005 asking the employee to report for duty. Though the employee did report for duty on 5.7.2005, it is the employer's case that even thereafter he absented himself from duty, often.

5. Eventually, from 11.12.2006, the employee entirely stopped from attending duty. Under those circumstances, the employer issued Annexure-R2 communication dated 24.7.2007 cautioning the employee: that he should either appear for duty or face discontinuation of his services. While the employee continued his absence, the employer on 31.12.2007 deleted the employee's name from the gradation list, treating it as abandonment of service. The employee was disengaged.

6. Aggrieved, the employee filed O.A. No. 642/2008 inviting Ext.P1 order. The Tribunal has found that the employer issued Annexure-R2 cautionary communication on 24.7.2007, but it also deleted the employee's name from the gradation list on the same day. So it has held that the employer's action cannot be sustained. That apart, on the merits, the Tribunal has concluded that the employee had been in service since 1983 and his absence was only in 2006. According to the Tribunal, it cannot be said that the respondent intended to abandon the service.

7. Essentially, on the premise that the employer has not doubted the medical certificates produced by the employee, the Tribunal has allowed the O.A. The employer was directed to re-engage the employee subject to any medical examination to ascertain the employee's fitness to function as a casual labourer.

Submissions:

8. The learned Assistant Solicitor General has contended that it is a clear case of abandonment of service. According to him, the respondent is a habitual absentee. He has laid specific emphasis that the employee's first bout of absence was on the ground of his suffering from Arthritis. Thereafter, for his prolonged absence beyond two years, he has assigned an entirely differently reason-disc pro-lapse.

9. The learned ASG has drawn our attention to the employee's Annexure-A2 representation, in which he stated that he had his treatment from Maharaja Hospital, Karuvelippady. But Annexur